Leadman v. Fidelity & Casualty Co. of New York, Civ. A. No. 1088.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Citation92 F. Supp. 782
Docket NumberCiv. A. No. 1088.
PartiesLEADMAN v. FIDELITY & CASUALTY CO. OF NEW YORK et al.
Decision Date19 August 1950

92 F. Supp. 782

LEADMAN
v.
FIDELITY & CASUALTY CO.
OF NEW YORK et al.

Civ. A. No. 1088.

United States District Court S. D. West Virginia.

August 19, 1950.


92 F. Supp. 783

Daniel & Daniel, John W. Daniel, and Will H. Daniel, Huntington, W. Va., for plaintiff.

Jackson, Kelly, Morrison & Moxley, W. T. O'Farrell and W. J. Carter, Charleston, W. Va., for Fidelity & Casualty Co. of New York.

MOORE, District Judge.

This action was originally instituted in the Circuit Court of Putnam County, West Virginia, from which it was removed to this court by defendant The Fidelity and Casualty Company of New York, a corporation. Plaintiff has moved to remand.

Plaintiff is a resident of West Virginia. Defendants Gammon and Peyton, hereinafter referred to as the principals, are police officers of the town of Hurricane, West Virginia, and are residents of West Virginia. The Fidelity and Casualty Company of New York, hereinafter referred to as the bonding company, is surety on the separate bonds of the principals, and is a resident of New York. Each bond is in the sum of $3,500, each is conditioned upon the faithful discharge of the duties of the principal therein named, and each recites that the principal and surety are jointly and severally bound.

Prior to bringing this suit, plaintiff instituted an action in the state court against the principals for false arrest and malicious prosecution. A jury returned a verdict in favor of plaintiff for $5,000, and final judgment was entered thereon. Execution on the judgment was returned "no property found." Plaintiff then instituted this action in the state court against the bonding company to subject the bonds to payment of the amount of the judgment, interest and costs, joining the principals as defendants. She prays for no relief against either of the principals. The bonding company sought removal on the ground that the principals are mere formal or nominal parties, and on the further ground that if any cause of action is stated against the principals, the cause of action against the bonding company is a separate and independent claim which would be removable if sued upon alone. Plaintiff's motion to remand is grounded on the contention that the principals are necessary parties to the action because they are vitally interested in the subject matter of the litigation; that, inasmuch as each of the bonds sought to be subjected to her judgment recites that the principal and surety are jointly and severally bound, she cannot be deprived of her option to enforce joint liability; and that there is no separable controversy as to the bonding company, since it is liable jointly with the principals on the same cause of action.

92 F. Supp. 784

I am of opinion that plaintiff's motion to remand should be overruled, and an order will be entered accordingly.

In determining questions of removability, only indispensable and necessary parties are considered. Nominal or formal parties are disregarded. As plaintiff contends, the courts have uniformly defined...

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13 practice notes
  • Glenmede Trust Company v. Dow Chemical Company, Civ. A. No. 74-2345.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 25, 1974
    ...v. Alpert et al., 194 F.Supp. 552 (D. Conn.1961); Helms v. Ehe, 279 F.Supp. 132 (S.D.Tex.1968); Leadman v. Fidelity & Casualty Company, 92 F.Supp. 782 (S.D.W.Va. Because the determination of whether a party is necessary or indispensable to a proceeding is dispositive of the existence of fed......
  • Colman v. Shimer, Civ. A. No. 3227.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 23, 1958
    ...D.C., 148 F.Supp. 126; Kopitko v. J. T. Flagg Knitting Co., D.C., 111 F. Supp. 549; Leadman v. Fidelity & Casualty Co. of New York, D.C., 92 F.Supp. 782. Under the Federal law a party whose role in a law suit is that of a depositary or stakeholder is a formal or nominal party and not an ind......
  • Kearney v. Dollar, Civ. A. No. 1503.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • January 16, 1953
    ...F.2d 978, 981; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Leadman v. Fidelity & Casualty Co. of N. Y., D.C., 92 F.Supp. 782; Higgins v. Baltimore & Ohio R. Co., C.C., 99 F. 640; Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390; Lucas v. Milliken, C.C., 139 F.......
  • Stonybrook Tenants Association, Inc. v. Alpert, Civ. 8604.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 31, 1961
    ...whether a case has been properly removed, the court in Leadman v. Fidelity & Casualty Company of New York, D.C. S.D.W.Va.1950, 92 F.Supp. 782, 784, "In determining questions of removability, only indispensable and necessary parties are considered. Nominal or formal parties are disregarded. ......
  • Request a trial to view additional results
13 cases
  • Glenmede Trust Company v. Dow Chemical Company, Civ. A. No. 74-2345.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 25, 1974
    ...v. Alpert et al., 194 F.Supp. 552 (D. Conn.1961); Helms v. Ehe, 279 F.Supp. 132 (S.D.Tex.1968); Leadman v. Fidelity & Casualty Company, 92 F.Supp. 782 (S.D.W.Va. Because the determination of whether a party is necessary or indispensable to a proceeding is dispositive of the existence of fed......
  • Colman v. Shimer, Civ. A. No. 3227.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 23, 1958
    ...D.C., 148 F.Supp. 126; Kopitko v. J. T. Flagg Knitting Co., D.C., 111 F. Supp. 549; Leadman v. Fidelity & Casualty Co. of New York, D.C., 92 F.Supp. 782. Under the Federal law a party whose role in a law suit is that of a depositary or stakeholder is a formal or nominal party and not an ind......
  • Kearney v. Dollar, Civ. A. No. 1503.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • January 16, 1953
    ...F.2d 978, 981; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Leadman v. Fidelity & Casualty Co. of N. Y., D.C., 92 F.Supp. 782; Higgins v. Baltimore & Ohio R. Co., C.C., 99 F. 640; Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390; Lucas v. Milliken, C.C., 139 F.......
  • Stonybrook Tenants Association, Inc. v. Alpert, Civ. 8604.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 31, 1961
    ...whether a case has been properly removed, the court in Leadman v. Fidelity & Casualty Company of New York, D.C. S.D.W.Va.1950, 92 F.Supp. 782, 784, "In determining questions of removability, only indispensable and necessary parties are considered. Nominal or formal parties are disregarded. ......
  • Request a trial to view additional results

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